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Summer Reading: Richard Painter on Ethics Reform II
Tuesday, September 10th, 2013
Robert Wechsler
This is the second of three posts on how Richard W. Painter's recommendations for federal ethics reform in his book, Getting
the Government America Deserves: How Ethics Reform Can Make a
Difference (Oxford U.P., 2009), may be applied to local government ethics programs.
Rulemaking
At the federal level, many ethics rules are made by the ethics program rather than by Congress. Painter wrote, "In an area such as government ethics, in which lawmakers themselves have so many competing pressures and conflicts of interest, robust administrative rulemaking is even more important."
But this kind of rulemaking scarcely exists at the local level. Many ethics commission are able to draft their own rules of procedure (although most fail to do so), and these can alleviate many of the unforeseen consequences of poorly written ethics provisions. But the reform of ethics provisions is usually left to local legislators, in conjunction with the city or county attorney. It doesn't have to be this way.
Even if it is not given rulemaking authority, an ethics commission is well situated to make recommendations to the local legislature for changes to the ethics code. An EC needs to recognize that it might take years to be successful with more controversial reforms, but if the EC is persistent, a scandal will soften legislators up at some point and make it more likely that even these more controversial reforms will become accepted. Without a scandal, the best way to achieve reasonable reform is to educate officials about government ethics, so that insteading of fearing it, they understand it and see its value to them.
Painter has a reasonable warning. After noting that the head of the OGE, the federal government's ethics program, is a political appointee (as are most local government EC members), he says that, "Allowing an agency headed by a political appointee to administratively alter statutory mandates binding on other political appointees may not look good, even though the power is not being abused." Here is a yet another argument for a truly independent ethics commission.
Advisory Boards or Representative Committees
Painter advocates something I've long been arguing for: instead of having those in a position to benefit from government decisions sit on government advisory boards, whose recommendations are often become legislation, the government should form representative committees whose members have no fiduciary relationship with the government or, put another way, are wearing only the hat of an industry representative. See the section of my book Local Government Ethics Programs on this topic.
Ethics Advice Beyond the Ordinary
Painter notes that a government makes many decisions where expert input relating to government ethics could be very useful. Government ethics advice beyond the narrow limits of an ethics code can improve the decision-making process. Ethics officers should offer their input, and officials should include them in important decisions, in such areas as hiring and firing, administration transitions, preparing officials for testimony in non-ethics investigations, and the preservation of records. "An institutional framework that excludes ethics officials from such deliberations is not likely to preserve the agency's overall fealty to the fiduciary principle," he wrote.
Cover-ups
Painter has a valuable suggestion for preventing cover-ups of ethical misconduct. The first thing is to recognize that those in an administration or agency have a cognitive bias toward concealment of wrongdoing. Once this is acknowledged, administrations and agencies can try to involve outsiders in ther discussion of how to handle reports of misconduct. Those who are not responsible for or close to those responsible for misconduct are more likely to be honest about it, to oppose concealment, and to explain how damaging concealment can be, to the administration or agency, to its leaders, and to the public trust. Painter recommends that these outsiders be career officials. I would add that former ethics officers, or ethics officers from nearby jurisdictions, could also provide helpful input.
Part 1 of this three-part post
Part 3 of this three-part post
Robert Wechsler
Director of Research-Retired, City Ethics
---
Rulemaking
At the federal level, many ethics rules are made by the ethics program rather than by Congress. Painter wrote, "In an area such as government ethics, in which lawmakers themselves have so many competing pressures and conflicts of interest, robust administrative rulemaking is even more important."
But this kind of rulemaking scarcely exists at the local level. Many ethics commission are able to draft their own rules of procedure (although most fail to do so), and these can alleviate many of the unforeseen consequences of poorly written ethics provisions. But the reform of ethics provisions is usually left to local legislators, in conjunction with the city or county attorney. It doesn't have to be this way.
Even if it is not given rulemaking authority, an ethics commission is well situated to make recommendations to the local legislature for changes to the ethics code. An EC needs to recognize that it might take years to be successful with more controversial reforms, but if the EC is persistent, a scandal will soften legislators up at some point and make it more likely that even these more controversial reforms will become accepted. Without a scandal, the best way to achieve reasonable reform is to educate officials about government ethics, so that insteading of fearing it, they understand it and see its value to them.
Painter has a reasonable warning. After noting that the head of the OGE, the federal government's ethics program, is a political appointee (as are most local government EC members), he says that, "Allowing an agency headed by a political appointee to administratively alter statutory mandates binding on other political appointees may not look good, even though the power is not being abused." Here is a yet another argument for a truly independent ethics commission.
Advisory Boards or Representative Committees
Painter advocates something I've long been arguing for: instead of having those in a position to benefit from government decisions sit on government advisory boards, whose recommendations are often become legislation, the government should form representative committees whose members have no fiduciary relationship with the government or, put another way, are wearing only the hat of an industry representative. See the section of my book Local Government Ethics Programs on this topic.
Ethics Advice Beyond the Ordinary
Painter notes that a government makes many decisions where expert input relating to government ethics could be very useful. Government ethics advice beyond the narrow limits of an ethics code can improve the decision-making process. Ethics officers should offer their input, and officials should include them in important decisions, in such areas as hiring and firing, administration transitions, preparing officials for testimony in non-ethics investigations, and the preservation of records. "An institutional framework that excludes ethics officials from such deliberations is not likely to preserve the agency's overall fealty to the fiduciary principle," he wrote.
Cover-ups
Painter has a valuable suggestion for preventing cover-ups of ethical misconduct. The first thing is to recognize that those in an administration or agency have a cognitive bias toward concealment of wrongdoing. Once this is acknowledged, administrations and agencies can try to involve outsiders in ther discussion of how to handle reports of misconduct. Those who are not responsible for or close to those responsible for misconduct are more likely to be honest about it, to oppose concealment, and to explain how damaging concealment can be, to the administration or agency, to its leaders, and to the public trust. Painter recommends that these outsiders be career officials. I would add that former ethics officers, or ethics officers from nearby jurisdictions, could also provide helpful input.
Part 1 of this three-part post
Part 3 of this three-part post
Robert Wechsler
Director of Research-Retired, City Ethics
---
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